Proposed Rule
Introduction to the Rule
On July 25, 2023, the Department of Justice (DOJ) released a proposed rule that if adopted would clarify what state and local governments must do to have their web content be considered compliant with Title II of the Americans with Disabilities Act (Title II). You can read the entire proposed rule and comment on it at Regulations.gov. Comments must be received by midnight EDT on October third. If you’re only interested in the highlights, you can read a fact sheet about the proposed rule published by DOJ.
compliance Standard and covered Content
- Would make version 2.1 Level AA of the Web Content Accessibility guidelines (WCAG) the compliance standard under Title II
- Would apply to web content that a state or local government makes available to the public or to offer activities, programs, and services to the public
- Applies to mobile apps made available to the public or used to offer activities, programs, and services to the public
Exceptions
The proposed rule contains six exceptions. In most instances, content meeting one of the exceptions would not need to be automatically made accessible.
Archived Web Content
Web content meeting all three of the following factors would not need to comply with WCAG:
- The content is maintained only for research, reference, or record keeping.
- The content is kept in a special area for archived content.
- The content has not been changed since being archived.
Preexisting Conventional Electronic Documents
Web or mobile content meeting both of the following requirements would not need to automatically comply with WCAG.
- The documents are in certain file formats specified in the proposed rule, like word processing, presentation, PDF, or spreadsheet files.
- are available on the state or local government’s website or mobile app before the date the state or local government will have to comply with the rule (after the rule is finalized).
This exception would not apply if the preexisting document is currently being used by the state or local government to provide information or to enable participation in an activity, program, or service of the state or local government; for example, an online PDF form created in 2021 enabling people to request tax statements would need to comply with WCAG even though it would have been created prior to the rule taking affect.
Content Posted by a Third Party
Web content posted on a state or local government’s website by a member of the public or that is otherwise out of the control of the state or local government would not need to comply with WCAG. States and local governments would not need to ensure all messages posted to their website by the public comply with WCAG. But if someone with a disability requests access to content that did not comply with WCAG, the state or local government would generally have to provide access to that information.
Linked Third Party Content
If a state or local government links to third party content on an external website, the state or local government would not need to ensure the content on the external site complies with WCAG. If a town links to local businesses, it would not need to ensure the web content of the local businesses complies with WCAG.
But if the town links to an external website to provide information or to allow people to access activities, programs, or services offered by the town, the town must ensure that the third party web content complies with WCAG. If a town contracts with a vendor to allow for the processing of credit card payments, the town would need to ensure the third party credit card processor complies with WCAG.
Public School’s Password Protected Content
Password-protected content associated with specific classes or courses generally would not need to comply with WCAG. The exception would not apply under either of the following two circumstances:
- A student needing accessible content is enrolled in a class
- A student is enrolled in a class and their parent has a disability resulting in the parent needing accessible materials
Individualized Documents That are Password Protected
Web content meeting all three of the following factors would not need to comply with WCAG:
- The content is in certain file formats, like word processing, presentation, PDF, or spreadsheet files
- Files are about a specific person, property, or account
- Files are password protected
If a city provides PDF versions of individual water bills through its website, all of the individual water bills would not need to comply with WCAG. If someone with a disability requests their individual water bill be provided accessibly their individual water bill would need to comply with WCAG.
Proposed Times for Compliance
If the rule is adopted with its current dates for compliance, state and local governments will have different amounts of time to comply depending on their population.
- Local governments with a population of less than 50,000 would have three years from the rule’s adoption to comply with the rule.
- Special district governments would also have three years to comply.
- A state or local government with a population of at least 50,000 would have two years to comply with the final rule.
- City school districts would use the population of their city when determining their compliance date.
- County school districts would use the population of the county to determine their compliance date.
- Independent school districts would use the population estimate in the most recent Small Area Income and Poverty Estimates.
Miscellaneous Notes
In this section, I’m going to cover a few important items that didn’t fit well in the other main sections but that I wanted to share.
Public Colleges and Universities
- If a student enrolled in a class prior to the class beginning, course materials would need to be accessible as soon as the class began.
- If a student registers for a class after the class begins, the school would have five business days to make all of the course material accessible.
- Any course materials added during the class would need to be accessible as it is added.
Social Media Posts
Through the rule making process, DOJ is looking for feedback on how this rule could address social media posts created by state and local governments. The initial idea is to have all social media posts produced after each state or local government is required to comply with the rule follow WCAG to the extent that social media platforms allow for conformance with WCAG. But DOJ is looking at how to address social media posts, including content posted to YouTube that will have been created prior to compliance being required.
Alternative Websites
The proposed rule only allows alternative websites to be used to provide accessible web content when a state or local government can show that making the existing web content accessible would be impossible or if one of the existing defenses available under Title II would apply.
ADA Defenses
I’m not going to spend much time here, because we have covered the defenses available under Title II in the episode on Title II basics. But to provide a quick reminder, state and local governments would need to comply with this rule unless they could demonstrate that doing so would result in fundamental alteration of their activities, programs, or services, or if compliance would result in undue administrative burdens.
Effective Communication
In the episode about effective communication, I covered all of the requirements state and local governments have around effectively communicating with people with disabilities. This rule would not limit any of those requirements. That’s why a state or local government would need to make archived content, which is otherwise not required to be accessible under this rule, compliant with WCAG if requested by a disabled person.
My Thoughts on the Proposed Rule
On balance, this proposed rule is well done. If it was law today, there is a reasonable chance that the web content offered by state and local governments would be far more accessible than it is today. But I have already begun commenting on the rule because I hope it will be improved by the time it is finalized. Comments I have or will share with DOJ include the following topics:
- The rule should address and account for the inequity behind the development of WCAG by requiring manual testing to be done by native users of assistive technologies.
- The rule should not expressly adopt version 2.1 of WCAG. Version 2.1 is likely to be outdated prior to this rule being finalized.
- The rule should expressly address audio description. Even though audio description is called for in all prerecorded content under WCAG, it is almost never provided by state and local governments.
- Given the amount of information state and local governments are now communicating through maps, data visualizations, and other methods of web content that provide little to no accessibility and that aren’t really covered in WCAG, the rule needs to specifically address these methods of communicating information on the web.
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